Date: 20060824
Docket: IMM-6530-05
Citation: 2006 FC 1024
Toronto,
Ontario, August 24,
2006
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
JORGE
HUMBERTO BELTRAN VELASQUEZ
Applicant
and
MINISTER OF CITIZENSHIP AND
IMMIGRATION
and MINISTER OF FOREIGN AFFAIRS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant Jorge Humberto Beltran Velasquez is a Columbian national. He resides
in Columbia and never
has been to Canada. In
Columbia the Applicant applied for a visa to enter Canada as a
permanent resident. By letter dated September 29, 2005, the First Secretary of
the Canadian Embassy in Columbia refused that
application. Judicial review by this Court of that refusal is now sought.
[2]
The
decision as communicated to the Applicant is a one page letter. That letter,
in its substantive position, simply states that there are reasonable grounds to
believe that the Applicant is a member of an inadmissible class as set out in
subsection 35(1)(a) of the Immigration and Refugee Protection Act (IRPA),
namely that he is a foreign national who has violated human or international
rights for committing an act that constitutes an offence under sections 4 to 7
of the Crimes Against Humanity and War Crimes Act. The letter does not
set out what the alleged acts were or what constituted the reasonable grounds
for belief that the acts were committed by the Applicant. It says nothing that
would support or clarify the basis for the decision made.
[3]
A
review of the affidavits provided by the Applicant in support of the present
application and that of the First Secretary submitted by the Respondent as well
as the record provided by the Canadian Embassy in Columbia reveals the
following facts.
1.
The
Applicant joined the military service in Columbia as a cadet in January 1981.
2.
The
Applicant rose in rank in the military, achieving the rank of Captain in
December, 1990. He retained the rank thereafter.
3.
From
December 1990 until September 1992, the Applicant was in command of a company
of eighty persons comprising sub-officers and soldiers. That company was part
of Mobile Brigade #2 and was engaged in anti-guerrilla activity.
4.
The
Applicant left military service in December 1992 at his own request. There is
some evidence that the Applicant was engaged as a businessman and an instructor
at a military school after that date. He has lived in Bogota Columbia since
1992, has a college degree in management and some savings. The Applicant’s
wife was in the military from 1983 to 1988 and now works as a secretary.
5.
Early in May
2002, the Applicant applied to the Canadian Embassy in Columbia for a visa to enter Canada on the basis that he feared
reprisal from members of the guerrilla group against which he operated while in
the military. That application was refused.
6.
Later in
May 2002, the Applicant’s wife approached the Canadian Embassy and asked for
reconsideration. The matter was reconsidered and the application was processed
to a point where it was delivered over to the First Secretary in 2004.
7.
The First
Secretary reviewed the file and became troubled by the fact that the Applicant
stated that he belonged to the Mobile Brigade #2. Data based searches
conducted on behalf of the First Secretary revealed information to the effect
that in 1992 Mobile Brigade #2 carried out certain human rights violations
including beating, raping and torturing civilians.
8.
At the
request of the First Secretary another member of the Embassy staff conducted a
telephone interview of the Applicant. That interview consisted simply of
asking whether the Applicant was present with Mobile Brigade #2 at certain
locations in Columbia during certain time periods
from 1990 through to the end of 1992. Of the ten locations and times which
were the subject of questioning, the Applicant answered no to nine and yes to
one. No other questions were asked. In respect of the one “yes” answer, the
Applicant was not asked what he did, or saw other s doing or any other question
at all.
9.
The
internal file provided by the Embassy shows that the Embassy contacted the Canadian
Government War Crimes Unit who advised the First Secretary that in their
opinion, there were reasonable grounds to believe that the Applicant may have
been involved or complicit in crimes against humanity. The First Secretary’s
affidavit, paragraph 21, states: “This is why I refused the application.”
10.
Without
further communication with the Applicant the letter, which constitutes the
decision under review, was sent to the Applicant denying his request for a
visa.
[4]
It
is clear from the evidence that, following the disclosure by the Applicant to
the Embassy staff member during a telephone interview that he was with Mobile
Brigade #2 in a particular location in Columbia in October 1992, the First
Secretary adopted the opinion expressed by the War Crimes Unit that the
Applicant was involved or complicit in crimes against humanity and that is why
a visa was refused. The Applicant was never confronted with the opinion
formed, and was never asked any questions as to what he was doing or what
others known to him were doing at the relevant time or place. In short, the Applicant
was never notified as to the specific concerns that the First Secretary had
about him, nor was he given an opportunity to respond.
[5]
This
Court in J.A.O. v. Canada (MCI) 2006 FC 178 at paragraph 26 and 28 has
held that a person is not complicit in the commission of a crime against
humanity by simple membership in an organization which is guilty of such
behaviour unless the organization has a limited brutal purpose. There is no
evidence in the present case that Mobile Brigade #2 has such a limited purpose.
It is not a person’s membership status that is important, rather, it is the
nature and scope of one’s activity in support of an organization engaged in
criminal behaviour that is the measure of his complicity. In the case now
before this Court, the applicant was never given notice as to the concerns
respecting the nature and scope of his activities nor was he given a reasonable
opportunity to respond to them.
[6]
This
case is about the duty of fairness and, if there has been a failure in such
duty, there has been a denial of national justice. In such an instance, no
deference can be given to the decision under review (Suresh v. Canada
(M.C.I.), [2002] 1 S.C.R. 3 at para. 115).
[7]
This
Court has recently reviewed the duty of fairness imposed upon a Visa Officer
and concluded that the Officer must give notice to an applicant of the
particular concerns that the Officer has, and provide an applicant with a meaningful
opportunity to respond. (Khwaja v. Canada (Minister of
Citizenship and Immigration), 2006 FC 922 particular at paragraph 17).
There was no such notice given in the present case and as a result, no
opportunity afforded to the Applicant to respond.
[8]
It
may be that, once the Applicant is given an opportunity to respond to the
concerns raised here, that the answer will not satisfy the Officer considering
the matter. That is not the question here. I do note however that the
Applicant’s affidavit filed in support of these proceedings carefully avoids
any discussion as to his involvement or complicity in the activities of Mobile
Brigade #2.
[9]
Thus
the matter must be returned for consideration by a different Officer. That
Officer must give notice of any concerns to the Applicant and afford the
Applicant a reasonable opportunity to respond. There is no question for
certification as the issues raised do not rise above the immediate party and
fact situation at hand (see Khwaja supra at para 34).
JUDGMENT
UPON application
made to this Court for judicial review of a decision of the First Secretary of
the Canadian Embassy in Columbia dated September 29,
2005 wherein the Applicant’s application for a visa was refused;
AND UPON reviewing the
Records filed herein and hearing oral submissions by counsel for the parties;
AND for the Reasons
delivered herewith;
THIS COURT ADJUDGES that
1.
The
Application is allowed;
2.
The
matter is referred back for decision by a different Officer, who must give
notice to the Applicant as to any concerns that the Officer has and must afford
the Applicant a reasonable opportunity to respond;
3.
There
is no question for certification; and
4.
There
is no Order as to costs.
“Roger T. Hughes”
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